Armstrong v. City of Dallas ( 1993 )

  •                   UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                                 No. 93-1133
                              Summary Calendar
              Appeal from the United States District Court
                   for the Northern District of Texas
                          (   July 22, 1993   )
    Before POLITZ, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.
    POLITZ, Chief Judge:
         Troy L. Armstrong, formerly a Dallas fire fighter, appeals the
    adverse summary judgment rejecting his Title VII discrimination
    claim against the City.   Finding no error, we affirm.
         Armstrong joined the Dallas Fire Department in June 1970 as a
    rescue officer, ultimately attaining the rank of second driver
    before retiring with benefits in 1991.    He seeks relief for alleged
    official harassment by his superiors on account of his race and
    because he filed a complaint with the Equal Employment Opportunity
         In 1987 the Dallas Fire Department responded to a perceived
    crisis by adopting a Physical Fitness Weight Program.       The program
    established maximum body-weight standards based on height and body
    type.   It also initiated weight loss goals for fire fighters
    exceeding the standards.
         Shortly after the program was implemented forces within the
    department purportedly lined up against Armstrong because "he
    assumed the role of spokesman on behalf of his black co-workers" in
    connection    with   a   racially   charged   incident.   Specifically,
    Armstrong cites the fact that he was transferred to another shift
    and was informed, for the first time, of the Physical Fitness
    Weight Program.      At that time Armstrong, who stood 6'3", weighed
    360 pounds.   Placed in the largest body-type category, he exceeded
    the maximum weight acceptable under the guidelines by 158 pounds.
    He was too fat to fit comfortably behind the wheel of the truck he
    was to drive.     Although many fire fighters exceeded the average
    recommended weight, only Armstrong was several standard deviations
    from the mean in the "Very Poor" category.
         Armstrong participated in the weight-loss program, hopeful
    that he would lose weight at the rate prescribed in the guidelines
    -- two to three pounds per month.        The reverse happened; several
    months later he weighed 426 pounds.            At this point the fire
    department removed him from active duty, advised him that his
    weight was a threat to his health, and asked him to lose two to
    three pounds per week.          According to a memorandum written by his
    superior    and,    indicating      receipt,     signed   by   Armstrong,   "[a]
    realistic long-range goal for you to attain in the future is to
    improve your current weight classification from the 'Very Poor'
    category to the 'Fair' category."              The memo cautioned of adverse
    health consequences if Armstrong exceeded the suggested average
    weight-loss rate of two to three pounds per week.                 This caution
    proved entirely unnecessary.
         Armstrong        responded     to   these    developments   by    filing    a
    complaint    with     the   EEOC    alleging     racial   discrimination.       In
    exchange for dismissal of the complaint, the department agreed not
    to retaliate for the filing and to return Armstrong to active
    service, subject to his losing three to five pounds per month.
    Armstrong returned to driving, dieting, and exercising in November
    1988, aware that he would be removed from active service if he
    failed to lose at least three pounds during any two consecutive
         Although Armstrong again failed to lose weight at the agreed
    rate, the department did not immediately remove him from active
    service.     Rather, employing a carrot and stick approach, the
    department forged still another agreement in August 1989.                   This
    agreement made clear, however, that if Armstrong did not adhere to
    his diet he automatically would be removed from active duty and
    would     face   an     array      of    disciplinary     measures,   including
         Two months later Armstrong had gained 13 pounds.                 Citing his
    failure to abide by the agreement and the fact that his weight
    constituted   a   continuing   threat       to    the    health    and   safety    of
    himself, his fellow fire fighters, and the citizens of Dallas, the
    department    removed   Armstrong    from        fire-fighting     status.        The
    department reported Armstrong's failure to abide by the weight-loss
    agreement to the Dallas Civil Service Department.
         In September 1989 Armstrong was issued a letter of counseling
    for losing his fire-fighting coat.                Armstrong responded to his
    removal from active service and the letter of counseling by filing
    another complaint with the EEOC, alleging retaliation for his
    earlier filing.      After failing to persuade the EEOC, Armstrong
    retired with benefits and instituted the instant action.
         Armstrong contends that the City has used his weight as a
    pretext for retaliation for his first EEOC complaint.                      He also
    claims that this retaliation violates the agreement reached after
    he withdrew that complaint.         The district court found no genuine
    issue of material fact and rendered summary judgment in the City's
    favor.   Armstrong timely appealed.
         We review the grant of summary judgment de novo, applying the
    same standard as the district court.                    This case presents the
    opportunity    for   clarification     of    that       standard    in   disparate
    treatment cases.     In McDonnell Douglas v. Green,1 the Supreme Court
    411 U.S. 792
    enumerated the order of proof in discrimination cases brought under
    the Civil Rights Act of 1964.2          As in any other case in which the
    plaintiff seeks to enforce rights under a statute, he must "carry
    the   initial   burden    under   the   statute       of   establishing"   facts
    sufficient to warrant recovery.3                  At this point a rebuttable
    presumption arises.4      Subsequent decisions clarify the effect and
    scope of this presumption.
          The   presumption    obligates        the    defendant   to   articulate   a
    legitimate, nondiscriminatory business reason for the challenged
              That proof system has been extended to a number of other
    statutory settings. E.g., Hazen Paper Co. v. Biggins, 
    113 S. Ct. 1701
    , 1706 (1993) ("In a disparate treatment case, liability
    depends on whether the protected trait (under the ADEA, age)
    actually motivated the employer's decision.") (citing United States
    Postal Serv. Bd. of Gov. v. Aikens, 
    460 U.S. 711
     (1983)); Patterson
    v. McLean Credit Union, 
    491 U.S. 164
    , 186-87 (1989) (42 U.S.C.
    § 1981); Humphreys v. Bellaire Corp., 
    966 F.2d 1037
    , 1043 (6th Cir.
    1992) (ERISA, 29 U.S.C. § 1140).
              The plaintiff in a Title VII retaliation case, such as
    the instant case, has made a showing sufficient to create a
    presumption of discrimination and, all else being equal, to defeat
    a motion for directed verdict if he can show that (1) he
    participated in a statutorily protected activity; (2) was the
    object of adverse employment action; and (3) there is a causal
    nexus between the activity and the adverse action. DeAnda v. St.
    Joseph Hosp., 
    671 F.2d 850
     (5th Cir. 1982).
              More recently the Court has described this as an
    inference. E.g., Wards Cove Packing Co., Inc. v. Antonio, 
    490 U.S. 642
    , 670 (1989); Price Waterhouse v. Hopkins, 
    490 U.S. 228
    , 286
    (1989); Watson v. Fort Worth Bank & Trust, 
    487 U.S. 977
    , 1004
    (1988) (Blackmun, J., concurring); United States Postal Serv. Bd.
    of Gov. v. Aikens, 
    453 U.S. 902
    , 905 (1981) (Marshall, J.
    dissenting); Board of Trustees of Keene State College v. Sweeney,
    439 U.S. 24
    , 24 (1978) (per curiam); Furnco Constr. Corp. v.
    438 U.S. 567
    , 577 (1978); International Brotherhood of
    Teamsters v. United States, 
    431 U.S. 324
    , 358 (1977).
    action.5   The burden of producing evidence from which a rational
    trier-of-fact could find discrimination, however, always remains
    with the plaintiff.6    In United States Postal Service Board of
    Governors v. Aikens,7 the Court made clear that once the evidence
    is closed, whether the plaintiff offered proof sufficient to secure
    the presumption is not the determinant.8      Rather, the question is
    whether the employee has carried the ultimate burden of proving
    discrimination, an inquiry requiring consideration of all of the
    evidence, direct and circumstantial, relating not only to the
    plaintiff's   oft-referred   to   prima   facie   case,   but   also   the
    defendant's proffered reason(s) and any other relevant evidence.
         A motion for summary judgment poses essentially the same legal
              The defendant's burden in a summary judgment setting is
    not to persuade that the explanation is correct but, rather, to
    preserve a genuine factual issue with respect to the existence vel
    non of discrimination. Texas Dep't of Comm. Affairs v. Burdine,
    450 U.S. 248
    , 254 (1981); Visser v. Packer Eng'g Assoc., Inc., 
    924 F.2d 655
     (7th Cir. 1991) ("If the employer offers a pretext -- a
    phony reason -- for why it fired the employee, then the trier of
    fact is permitted, although not compelled, to infer that the real
    reason was age.")(citations omitted).
              Hence, the employee does not necessarily prevail by
    producing some evidence of discrimination and disproving the
    employer's proffered explanation. Burdine. Rather, the employee
    may prevail, and indeed will prevail, upon persuading the trier of
    fact of the ultimate issue -- intentional discrimination.      See
    460 U.S. 711
     (1983). See also Walther v. Lone Star Gas
    952 F.2d 119
    , 122 (5th Cir. 1992).
              "The method suggested in McDonnell Douglas for pursuing
    this inquiry, however, was never intended to be rigid, mechanized,
    or ritualistic." Furnco Constr., 438 U.S. at 577.
    inquiry as a motion for judgment as a matter of law9 or a challenge
    to the sufficiency of the evidence on appeal.10         The legal decision
    at   each of   these   litigation    junctures    is   whether   the   record
    evidence is so compelling that a particular party must prevail as
    a matter of law.11
          The court's attention, when addressing a motion for judgment
    as a matter of law, must focus on the ultimate issue(s) in light of
    the controlling evidentiary burden.12          The essential fact question
    in any employment discrimination case in which the plaintiff
    alleges disparate treatment is "not whether the plaintiff has
    established    a   prima   facie   case   or   demonstrated   pretext,   but
    'whether the defendant has discriminated against the plaintiff.'"13
              "[T]his standard mirrors the standard for a directed
    verdict under Rule 50." Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 250 (1986). Rule 50 now refers to this motion and the former
    motion for judgment notwithstanding the verdict as motions for
    judgment as a matter of law.
              Granberry v. O'Barr, 
    866 F.2d 112
    , 113 (5th Cir. 1988)
    (noting that standard of review of sufficiency of the evidence to
    support a jury verdict is the same as that applied in awarding
    directed verdicts or judgments notwithstanding the verdict).
               Anderson, 477 U.S. at 252.
              We no longer ask whether literally little evidence, i.e.,
    a scintilla or less, exists but, whether the nonmovant could, on
    the strength of the record evidence, carry the burden of persuasion
    with a reasonable jury. Id. at 251.
              Grigsby v. Reynolds Co., 
    821 F.2d 590
    , 595 (11th Cir.
    1987) (quoting Nix v. WLCY Radio/Rahall Comm., 
    738 F.2d 1181
    , 1184
    (11th Cir. 1984) (quoting in turn Aikens)). See also MacDonald v.
    Eastern Wyoming Mental Health Ctr., 
    941 F.2d 1115
     (10th Cir. 1991);
    Haglof v. Northwestern Rehab., Inc., 
    910 F.2d 492
    , 495 (8th Cir.
         This is not to suggest that the evidence which would be
    sufficient to create a presumption of discrimination at trial is
    somehow rendered irrelevant.   To the contrary, that evidence might
    be conclusive.   What is irrelevant, however, in the determination
    whether the evidence supports a judgment as a matter of law, is the
    stage of the unfolding of the proof.      If the summary judgment
    record consists only of evidence that the plaintiff engaged in
    protected activity and, as a result, was treated adversely, the
    proof of discrimination would be conclusive.14   Such a scenario is
    seldom presented; the employer typically offers evidence countering
    the plaintiff's proof, thus preserving the ultimate issue for the
    trier-of-fact.   When either party moves for summary judgment, all
    of the evidence must be considered in the determination whether the
    plaintiff has sustained the burden of proving discrimination.
         In the case at bar, the question before us is whether the
    evidence in the summary judgment record establishes, as a matter of
    law, that Armstrong was not the victim of discrimination by his
    employer. The once frequently repeated characterization of summary
    judgment as a disfavored procedural shortcut no longer appertains.15
    1990) (Stuart, J. concurring); Palucki v. Sears, Roebuck & Co., 
    879 F.2d 1568
    , 1570 (7th Cir. 1989).
              Burdine, 450 U.S. at 254 n.7; Mesnick v. G.E., 
    950 F.2d 816
     (1st Cir. 1991), cert. denied, 
    112 S. Ct. 2965
              Anderson; Celotex Corp. v. Catrett, 
    477 U.S. 317
    Matsushita Elec. Indus. v. Zenith Radio Corp., 
    475 U.S. 574
    Compare Judge Wisdom's opinion for this court in 1959. Bruce v.
    Travelers Ins. Co., 
    266 F.2d 781
    , 786 (5th Cir. 1959).
    Summary judgment is appropriate where critical evidence is so weak
    or tenuous on an essential fact that it could not support a
    judgment in favor of the nonmovant, or where it is so overwhelming
    that     it   mandates    judgment   in   favor    of   the   movant.    In    all
    instances, the nonmovant is entitled to a fair opportunity to
    discover and produce evidence before the summary judgment record
    may be closed.16         But in all instances, once a motion for summary
    judgment has pierced the allegations contained in either the
    complaint or answer,         produce one must or face the potential of an
    adverse summary judgment.17
            The   only   evidence   available     to   support    an   inference    of
    discrimination in the case before us is the temporal proximity of
    the alleged racial incident and the application of the weight
    guidelines.18        The acceptance of this as a reasonable inference
    would not end our inquiry.           Instead, where, as here, the employer
    offers a legitimate, nondiscriminatory explanation for the adverse
    action, the burden is on the employee to show that the explanation
              Fed.R.Civ.P. 56(f); Celotex, 477 U.S. at 322; Cf. Aikens,
    460 U.S. at 716 n.5.
              "[R]egardless of whether the moving party accompanies its
    summary judgment motion with affidavits, the motion may, and
    should, be granted so long as whatever is before the district court
    demonstrates that the standard for the entry of summary judgment
    . . . is satisfied." Celotex, 477 U.s. at 323.
              Cf. Rath v. Selection Research, Inc., 
    978 F.2d 1087
    , 1090
    (8th Cir. 1992) (discharge soon after protected activity is
    indirect proof of causal connection).
    is merely a pretext for discrimination.19 We conclude that the City
    established   a    legitimate,     nondiscriminatory      reason   for   its
    actions,20 namely, Armstrong's excessive weight and the loss of his
    fire-fighting coat, and that the summary judgment record is devoid
    of evidence of pretext.
         A studied review of the record convinces us that no reasonable
    factfinder could find Armstrong's weight to have been a pretext for
    discrimination.    To the contrary, a reasonable juror would have to
    find that the decision to put Armstrong on inactive duty and to
    demand that   he   lose   weight   was    mandated   by   his   unacceptable
    physical size.
         The department's demands that Armstrong comply with its weight
    guidelines, and its concomitant admonitions of adverse consequences
    if he failed to do so, were neither unjustified nor in any way
    related to his EEOC filing.        There is no evidentiary support for
    Armstrong's claim that the fire department was retaliating against
    him for filing a complaint with the EEOC.       His Title VII and breach
    of contract claims did not present a genuine issue of material fact
               Burdine. The City explained that Armstrong's excessive
    weight was the cause of its demand that he slim down.         The
    explanation    for  the  letter  of   counseling  was   similarly
    self-evident.    Neither obesity nor misconduct is protected by
    Title VII.
              There is no suggestion that the guidelines were a vehicle
    for the expression of racial animus.     They were applied to all
    members of the fire department in an unquestionably objective and
    neutral manner, based on such factors as weight, height, and elbow
    size.   Armstrong was the only fire fighter who, based on these
    objective criteria, fell into the "Very Poor" category.
    and summary judgment for defendant was appropriate.

Document Info

DocketNumber: 93-1133

Filed Date: 7/23/1993

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (27)

McDonnell Douglas Corp. v. Green , 411 U.S. 792 ( 1973 )

Teamsters v. United States , 431 U.S. 324 ( 1977 )

Furnco Constr. Corp. v. Waters , 438 U.S. 567 ( 1978 )

Board of Trustees of Keene State College v. Sweeney , 439 U.S. 24 ( 1978 )

Texas Dept. of Community Affairs v. Burdine , 450 U.S. 248 ( 1981 )

United States Postal Service Board of Governors v. Louis H. ... , 453 U.S. 902 ( 1981 )

Postal Service Bd. of Governors v. Aikens , 460 U.S. 711 ( 1983 )

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio ... , 475 U.S. 574 ( 1986 )

Anderson v. Liberty Lobby , 477 U.S. 242 ( 1986 )

Celotex Corporation v. Myrtle Nell Catrett, Administratrix ... , 477 U.S. 317 ( 1986 )

Watson v. Fort Worth Bank & Trust , 487 U.S. 977 ( 1988 )

Price Waterhouse v. Hopkins , 490 U.S. 228 ( 1989 )

Wards Cove Packing Co. v. Atonio , 490 U.S. 642 ( 1989 )

Patterson v. McLean Credit Union , 491 U.S. 164 ( 1989 )

Hazen Paper Co. v. Biggins , 507 U.S. 604 ( 1993 )

Jack J. Bruce v. Travelers Insurance Company , 266 F.2d 781 ( 1959 )

28 Fair empl.prac.cas. 317, 28 Empl. Prac. Dec. P 32,524 ... , 671 F.2d 850 ( 1982 )

35 Fair empl.prac.cas. 1104, 34 Empl. Prac. Dec. P 34,575 ... , 738 F.2d 1181 ( 1984 )

Patricia Below Granberry v. Dennis O'Barr , 866 F.2d 112 ( 1988 )

Robert H. Palucki v. Sears, Roebuck & Company , 879 F.2d 1568 ( 1989 )

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